The Champion

June 2013 , Page 55

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Getting Scholarship Into Court Project

Editor’s Note: The “Getting Scholarship Into Court Project” brings helpful law review articles and other writings to the attention of criminal defense attorneys. The project’s purpose is to identify scholarship that will be especially useful to courts and practitioners. Summarized in this column are articles the project’s advisory board recommends that practicing lawyers take the time to read.

Shima Baradaran and Frank McIntyre

This article considers whether the United States is making substantially mistaken judgments about who is likely to commit crimes while on pretrial release and whether judges are detaining the right people. The results of this study are particularly important to attorneys arguing pretrial release, judges making release determinations, and policymakers interested in reducing mass incarceration rates and improving the rights of criminal defendants.

Relying on the largest dataset of pretrial defendants in the United States, this article determines what factors, if any, are relevant to predicting “dangerousness” pretrial and what percentage of defendants can be released safely before trial. Prior work in this area disagrees as to whether the current charge or past convictions are relevant predictors of future crimes, whether flight risk is linked to pretrial violence, and whether judges can accurately predict which defendants are dangerous. This article — for the first time — relies on empirical methods and a nationally representative 15-year dataset of over 100,000 defendants to determine what factors are reliable predictors of who will commit pretrial crime.

This analysis suggests several important conclusions. First, prior work has disagreed on how likely reported pretrial arrest actually is, and our study shows that it is actually quite unlikely. For instance, about 80 percent of released pretrial defendants have less than a three percent chance of being rearrested pretrial for a violent crime and for almost all crimes, the average rearrest rates are only about one to two percent for a pretrial violent crime. Second, scholars have said that there are no accurate predictors of pretrial crime. We disagree with that, showing that the present offense, prior convictions, and prior failures to appear are all important predictors of pretrial rearrest. We also show that though defendants with drug felonies are presumed to be dangerous, they are among the least likely to be rearrested for a violent crime. In fact, people charged with drug felonies are about as likely to be rearrested as those brought in on driving-related offenses. Third, the analysis also considers an issue of first impression in this area: which of two risks weighs more heavily with judges — dangerousness or flight risk? In states where judges should consider both factors, we find that judges consider dangerousness at a much higher rate than flight risk, almost to the exclusion of flight risk. Finally, recognizing that overall detention rates have increased in both federal and state systems, our study examines whether we can release more defendants safely. In the most significant finding in the study, the analysis shows that if the goal is to prevent crime, judges are often releasing and detaining the wrong groups. In other words, about half of those detained have a lower chance of being rearrested pretrial than many of the people released. Indeed, we would be able to release 25 percent more defendants while decreasing pretrial crime levels if we released defendants using our evidence-based model.

L. Song Richardson

This article argues that the Fourth Amendment’s stop-and-frisk jurisprudence is premised upon a profound misunderstanding of the nature of suspicion. When determining whether law enforcement officers had the reasonable suspicion necessary to justify a stop-and-frisk, courts currently assume that the presence or absence of reasonable suspicion can be determined objectively simply by examining the factual circumstances that the officers confronted. However, well-established social science research demonstrates that implicit (i.e., unconscious) biases can affect judgments of suspicion in ways people are unaware of and often unable to control. Studies reveal, for instance, that simply thinking about crime activates nonconscious stereotypes of Blacks in police officers. As a result, they pay more attention to Black faces than to White faces. We can think of this as a kind of unconscious racial profiling. Furthermore, because of implicit stereotyping, officers are more likely to “see” weapons in the hands of unarmed Blacks than unarmed Whites, and to shoot them more quickly in computer simulations. Since judgments of suspicion can be affected by implicit biases and officers vary in their ability to overcome them, this article argues that courts should supplement their objective, fact-centered approach to stop-and-frisk cases with one that is more officer-centric. In other words, rather than treat reasonable suspicion as something that either is or is not objectively provoked by a given set of facts, this article proposes that courts place a heavy emphasis on each officer’s “hit rate” — the rate at which an officer has successfully detected criminal activity when conducting stop and frisks in the past. This doctrinal change, combined with a more robust articulation requirement, may better protect Fourth Amendment norms.

Over the past several decades, the U.S. Supreme Court has given police officers increasing authority to engage in warrantless searches of containers. This trend is inconsistent with the way the Supreme Court treated containers in the 1970s. Under the Container Doctrine, police officers with probable cause to believe evidence of a crime was in a container could seize the container, but could not open or search it without a search warrant. A warrant was required because one who placed his or her belongings in a container had manifested a strong expectation that the contents within would remain private. Moreover, once the container was in the possession and control of the officer, any evidence within was not likely to walk away on its own. This article shows that the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued by a judicial officer. The demise of the Container Doctrine, the article says, mirrors the Court’s turn away from the Warrant Preference view of the Fourth Amendment in favor of the Separate Clauses (or reasonableness) view. According to the article, one unfortunate result of allowing the police to search portable containers on the street without a warrant is a disproportionate impact on the homeless and the poor, including poor people of color.